By Gene Johnson / Associated Press
SEATTLE — A federal judge declined to block Washington’s cyberstalking law Tuesday — despite his concerns about its constitutionality.
U.S. District Judge Ronald Leighton in Tacoma said in his written order that he agreed with the state Attorney General’s Office, which argued he should refrain from ruling on the matter because the Bainbridge Island man who challenged the law also has a related appeal in state court. Leighton cited a legal principle under which federal courts generally don’t intervene in state court proceedings.
A retired Air Force major named Richard L. Rynearson III, of Bainbridge Island, sued to block the law, saying it’s unconstitutional because, among other things, it bars online speech designed to embarrass other people.
Rynearson argued that the law criminalizes speech otherwise protected by the First Amendment. He said the Kitsap County Prosecutor’s Office had threatened to prosecute him for posts that criticized — but did not threaten — a local community activist.
The judge wrote that Rynearson had raised serious questions about the law and noted that during oral arguments last month, Deputy Attorney General Darwin Roberts sidestepped his invitation to defend the law’s constitutionality.
“Rynearson raises compelling questions as to the breadth and constitutionality of certain provisions,” Leighton wrote. “These questions are seemingly reinforced by Defendants’ reluctance to address the constitutionality of the statute during oral argument.”
Nevertheless, Leighton said, Rynearson is appealing a protection order the community activist obtained against him, and the Kitsap County Superior Court should be allowed to rule on the arguments Rynearson raises in the appeal.
Eugene Volokh, a University of California-Los Angeles law professor who represents Rynearson, told The Associated Press in an email Tuesday they appreciate the judge’s analysis but disagree and expect to appeal. During arguments, Volokh told the judge the law can’t be constitutional: “If you think of much of what goes on in elections, President Trump might have been guilty of cyberstalking Secretary Clinton,” he said.
When lawmakers unanimously approved the cyberstalking law in 2004, they essentially cut-and-pasted language from the state’s telephone harassment statute. But telephone harassment statutes, which have largely been upheld by courts around the country, criminalize person-to-person harassment done by phone. The cyberstalking law criminalizes content published to a broader audience, thus more seriously implicating free-speech rights, Volokh argued.
Rynearson has repeatedly written posts that criticize Clarence Moriwaki, who founded a memorial on Bainbridge Island there to memorialize the internment of Japanese Americans during World War II. Rynearson insists that those who condemn the internment should also strongly speak out against the government’s indefinite detention powers in the war on terror, but that Moriwaki hasn’t done so.
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